State v. Hrbenic

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

DENIJAL HRBENIC, Petitioner.

No. 1 CA-CR 12-0224 PRPC
FILED 3-25-2014

Appeal from the Superior Court in Maricopa County
No. CR2010-101929
The Honorable Christopher T. Whitten, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Denijal Hrbenic, Phoenix
Petitioner Pro Se

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
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Decision of the Court

G O U L D, Judge:

¶1 Petitioner Denijal Hrbenic (“Hrbenic”) seeks review of the
superior court’s order denying his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of
discretion or error of law, this court will not disturb a superior court’s
ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz.
573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, this court
grants review but denies relief.

BACKGROUND

¶2 As a result of his sexually deviant behavior with three minor
victims, Hrbenic was charged with three counts of sexual conduct with a
minor, four counts of child molestation, and one count of indecent
exposure. After his counsel secured a more favorable plea than the state
had originally offered, Hrbenic plead guilty to amended count one, child
molestation, and amended counts six and eight, attempted child
molestation. The parties stipulated that the sentence for amended count
one would not exceed the presumptive term of seventeen years’
imprisonment, and stipulated to lifetime probation for amended counts
six and eight. The trial court accepted the plea and later sentenced
Hrbenic to the presumptive term of seventeen years’ imprisonment on
amended count one, and lifetime probation on amended counts six and
eight.

¶3 Hrbenic filed a timely notice of post-conviction relief.
Counsel was appointed and after reviewing the record, counsel filed a
notice that he was unable to find any claims for relief. Hrbenic then filed a
lengthy pro se petition. He claimed his plea was involuntary, his counsel
was ineffective, his statements to police and a confrontation call should
have been suppressed, the trial judge was not neutral and impartial, and
the court had no subject matter jurisdiction over counts one and six as
alleged in the indictment.

¶4 After full briefing, the trial court denied relief. The trial
court found that Hrbenic’s claims regarding the admissibility of the
confrontation call and his statements to police were waived by entry into
the plea agreement. As to the ineffective assistance of counsel claim, the
trial court noted that counsel was aware of the above issues, but chose to
pursue a more favorable plea agreement. The court also found that the
record belied Hrbenic’s claim that his plea was involuntary. Hrbenic’s

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motion for reconsideration was denied and Hrbenic timely petitioned this
court for review.

DISCUSSION

¶5 On review Hrbenic argues that the trial court misunderstood
his claims. He argues that he is entitled to relief because (1) his plea was
involuntary as a result of counsel’s ineffective assistance, and because of
“the [trial] court’s unfair, inaccurate, and coercive acts,” and because (2)
the trial court did not make any specific ruling on his subject matter
jurisdiction claim. As explained below, Hrbenic failed to set forth any
colorable claims, and thus the trial court did not abuse its discretion when
it denied relief.

I. Confrontation call

¶6 Hrbenic argues that counsel should have moved to suppress
the confrontation call because (1) the call was intercepted and recorded
without valid consent, (2) he was not warned that anything he said during
the call could be used against him, and (3) the call was an unreasonable
search and seizure in violation of the Fourth Amendment to the United
States Constitution, and Article II, Section 8 of the Arizona Constitution.
He asserts that if counsel had advised him of this, he would not have
plead guilty. He also asserts that had the trial court advised him of this at
the settlement conference, he would have insisted on going to trial. He
concludes that counsel’s failure to so advise him constituted ineffective
assistance, and that the trial judge’s failure to so advise him demonstrates
that the trial judge was not neutral or impartial, but instead coerced him
to take the plea agreement.

¶7 These claims are not colorable. We note that generally
confrontation calls are admissible at trial. See State v. Allgood, 171 Ariz.
522, 524, 831 P.2d 1290, 1292 (1992) (recording of confrontation call
designed to elicit admissions corroborating victim’s accusations does not
violate United States or Arizona Constitutions). Furthermore, Hrbenic’s
allegations that the victim was acting as an agent of the police and that
valid consent was not given are unsupported by the record. Although he
referenced police reports in his petition, those reports are not part of the
record. For a claim to be colorable there must be something in the record

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that arguably supports the claim.1 State v. Suarez, 23 Ariz. App. 45, 46, 530
P.2d 402, 403 (1975).

¶8 Because Hrbenic failed to show that the confrontation call
would likely have been inadmissible, his claim of an involuntary plea
based on counsel’s alleged ineffective assistance is unfounded. And
Hrbenic’s claim that the trial judge was “unfair, inaccurate, and coercive,”
because the trial judge did not advise him that the confrontation call was
inadmissible and that without the call he would likely be acquitted at trial,
is similarly unfounded.

II. Hrbenic’s statements to police

¶9 The record reflects that counsel was aware that Hrbenic’s
statements to police might have been subject to suppression, but counsel
chose to forgo a motion to suppress and to pursue a more favorable plea
agreement. Actions which appear to be a reasonable choice of tactics will
not support an allegation of ineffective assistance of counsel. State v.
Vickers, 180 Ariz. 521, 526, 885 P.2d 1086, 1091 (1994); State v. Nirschel, 155
Ariz. 206, 208, 745 P.2d 953, 955 (1987).

III. Counsel’s alleged statements regarding sentencing

¶10 Hrbenic also claims that counsel made statements to him
that misled him about the sentences he would receive. Other than
Hrbenic’s self-serving affidavit, there is nothing in the record to support
this claim. In fact, this claim is contradicted by the record. The potential
sentences under the plea agreement were fully explained to Hrbenic and
he told the trial court that he understood. He also told the court that no
promises, other than those written in the plea agreement, had been made
to him by anyone. A trial court need not conduct an evidentiary hearing
based on unsubstantiated claims. State v. Borbon, 146 Ariz. 392, 399, 706
P.2d 718, 725 (1985).

1 Even if the claims were supported, the three victims were available
to testify at trial so that suppression of the confrontation call in no way
assured an acquittal. Counsel’s decision to forgo suppression of any
evidence and pursue a more favorable plea agreement was not only
reasonable, but successful.

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IV. Subject matter jurisdiction

¶11 Finally, although the trial court did not specifically address
the subject matter jurisdiction claim, the trial court properly denied relief.
Relying on perceived deficiencies as to the date ranges set forth in counts
one and six of the original indictment, Hrbenic claims these deficiencies
deprived the trial court of subject matter jurisdiction. However, even if
these counts were deficient as argued, the trial court would not be
deprived of subject matter jurisdiction. As Hrbenic concedes, the superior
court has subject matter jurisdiction in felony cases. Ariz. Const. art. VI, §
14; State v. Jacobsen, 106 Ariz. 129, 130, 471 P.2d 1021, 1022 (1970). Subject
matter jurisdiction is “the power of a court to hear and determine a
controversy.” Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App.
1985). Thus, even if the counts were defective as alleged, the superior
court retained the power to “hear and determine” Hbrenic’s felony
prosecution.

CONCLUSION

¶12 For these reasons, although granting the petition for review,
relief is denied.

:MJT

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